Opinions & Commentaries

Overruled

Appellants brought a declaratory judgment action in the Supreme Court of New York, Kings County, praying that § 12-a of the Civil Service Law,[1] as implemented by *487 the so-called Feinberg Law,[2] be declared unconstitutional, and that action by the Board of Education of the City of New York thereunder be enjoined. On motion for judgment on the pleadings, the court held that subdivision (c) of § 12-a, the Feinberg Law, and the Rules of the State Board of Regents promulgated thereunder violated the Due Process Clause of the Fourteenth Amendment, and issued an injunction. 196Misc.873, 95 N. Y. S. 2d 114. The Appellate Division of the Supreme Court reversed, 276 App. Div. 527, 96 N. Y. S. 2d 466, and the Court of Appeals affirmed the judgment of the Appellate Division, 301 N. Y. 476, 95 N. E. 2d 806. The appellants come here by appeal under 28 U. S. C. § 1257.

This is an appeal from a decision of the Supreme Court of Oklahoma upholding the validity of a loyalty oath[1] prescribed by Oklahoma statute for all state officers and *185 employees. Okla. Stat. Ann., 1950, Tit. 51, §§ 37.1-37.8 (1952 Supp.). Appellants, employed by the State as members of the faculty and staff of Oklahoma Agricultural and Mechanical College, failed, within the thirty days permitted, to take the oath required by the Act. Appellee Updegraff, as a citizen and taxpayer, thereupon brought this suit in the District Court of Oklahoma County to enjoin the necessary state officials from paying further compensation to employees who had not subscribed to the oath. The appellants, who were permitted to intervene, attacked the validity of the Act on the grounds, among others, that it was a bill of attainder; an ex post facto law; impaired the obligation of their contracts with the State and violated the Due Process Clause of the Fourteenth Amendment. They also sought a mandatory injunction directing the state officers to pay *186 their salaries regardless of their failure to take the oath. Their objections centered largely on the following clauses of the oath:

". . . That I am not affiliated directly or indirectly. . . with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization; . . . that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of . . . any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public agency of the United States to be a communist front or subversive organization . . . ."

The court upheld the Act and enjoined the state officers from making further salary payments to appellants. The Supreme Court of Oklahoma affirmed, sub nom. Board of Regents v. Updegraff,205Okla.301, 237 P. 2d 131 (1951).[2] We noted probable jurisdiction because of the public importance of this type of legislation and the recurring serious constitutional questions which it presents.
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In an investigation conducted by a State Attorney General, acting on behalf of the State Legislature under a broad resolution directing him to determine whether there were "subversive persons" in the State and to recommend further legislation on that subject, appellant answered most questions asked him, including whether he was a Communist; but he refused to answer questions related to (1) the contents of a lecture he had delivered at the State University, and (2) his knowledge of the Progressive Party of the State and its members. He did not plead his privilege against self-incrimination, but based his refusal to answer such questions on the grounds that they were not pertinent to the inquiry and violated his rights under the First Amendment. Persisting in his refusal when haled into a State Court and directed to answer, he was adjudged guilty of contempt. This judgment was affirmed by the State Supreme Court, which construed the term "subversive persons" broadly enough to include persons engaged in conduct only remotely related to actual subversion and done completely apart from any conscious intent to be a part of such activity. It also held that the need of the Legislature to be informed on the subject of self-preservation of government outweighed the deprivation of constitutional rights that occurred in the process.

Once more the Court is required to resolve the conflicting constitutional claims of congressional power and of an individual's right to resist its exercise. The congressional power in question concerns the internal process of Congress in moving within its legislative domain; it involves the utilization of its committees to secure "testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution." McGrain v. Daugherty, 273 U. S. 135, 160. The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.

An Arkansas statute compels every teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years. At issue in these two cases is the validity of that statute under the Fourteenth Amendment to the Constitution. No. 14 is an appeal from the judgment of a three-judge Federal District Court upholding the statute's validity, 174 F. Supp. 351. No. 83 is here on writ of certiorari to the Supreme Court of Arkansas, which also held the statute constitutionally valid. 231Ark.641, 331 S. W. 2d 701.

Appellants, faculty members of the State University of New York and a non-faculty employee, brought this action for declaratory and injunctive relief, claiming that New York's teacher loyalty laws and regulations are unconstitutional. Their continued employment had been terminated or was threatened when each appellant faculty member refused to comply with a requirement of the University trustees that he certify that he was not a Communist and that, if he had ever been one, he had so advised the university president, and the non-faculty employee refused to state under oath whether he had advocated or been a member of a group which advocated forceful overthrow of the government. Under § 3021 of New York's Education Law, "treasonable or seditious" utterances or acts are grounds for dismissal from the public school system, as well as under § 105, subd. 3, of the Civil Service Law. Other provisions of § 105 of the Civil Service Law disqualify from the civil service or employment in the educational system any person advocating or involved with the distribution of written material which advocates the forceful overthrow of the government. Section 3021 does not define "treasonable or seditious." Section 105, subd. 3, provides that "treasonable word or act" shall mean "treason" as defined in the Penal Law, and "seditious word or act" shall mean "criminal anarchy" as therein defined. Section 3022 (the Feinberg Law) of the Education Law requires the State Board of Regents to issue regulations for the disqualification or removal on loyalty grounds of faculty or other personnel in the state educational system, to make a list of "subversive" organizations, and to provide that membership therein constitutes prima facie evidence of disqualification for employment. The Board listed the National and State Communist Parties as "subversive organizations" under the law, but, shortly before the trial of this case, the university trustees' certificate requirement was rescinded and it was announced that no person would be ineligible for employment "solely" because he refused to sign the certificate, and that §§ 3021 and 3022 of the Education Law and § 105 of the Civil Service Law constituted part of the employment contract. A three-judge District Court sustained the constitutionality of these provisions against appellants' challenges of vagueness and overbreadth and dismissed the complaint.
Held:
1. Adler v. Board of Education, 342 U. S. 485, in which this Court upheld some aspects of the New York teacher loyalty plan before its extension to state institutions of higher learning, is not controlling, the vagueness issue presented here involving § 3021 and § 105 not having been decided in Adler, and the validity of the subversive organization membership provision of § 3022 having been upheld for reasons subsequently rejected by this Court. Pp. 385 U. S. 593-595.
2. The rescission of the certificate requirement does not moot this case, as the substance of the statutory and regulatory complex challenged by appellants remains. P. 385 U. S. 596.
3. Section 3021 of the Education Law and § 105, subds. 1(a), 1(b), and 3, of the Civil Service Law, as implemented by the machinery created pursuant to § 3022 of the Education Law, are unconstitutionally vague, since no teacher can know from § 3021 of the Education Law and § 105, subd. 3, of the Civil Service Law what constitutes the boundary between "seditious" and nonseditious utterances and acts, and the other provisions may well prohibit the employment of one who advocates doctrine abstractly, without any attempt to incite others to action, and may be construed to cover mere expression of belief. Pp. 385 U. S. 597-604.
(a) These provisions, which have not been interpreted by the New York courts, can have a stifling effect on the "free play of the spirit which all teachers ought especially to cultivate and practice" (Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 195 (concurring opinion)). Pp. 385 U. S. 601-602.
(b) Academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. P. 385 U. S. 603.
(c) The prolixity and profusion of statutes, regulations, and administrative machinery, and manifold cross-references to interrelated enactments and rules aggravate the problem of vagueness of wording. P. 385 U. S. 604.
4. The provisions of the Civil Service Law (§ 105, subd. 1(c)) and the Education Law (§ 3022, subd. 2) which make Communist Party membership, as such, prima facie evidence of disqualification for employment in the public school system are "overbroad," and therefore unconstitutional. Pp. 385 U. S. 605-610.
(a) Constitutional doctrine after this Court's upholding of § 3022, subd. 2, in Adler has rejected its major premise that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action. P. 385 U. S. 605.
(b) Mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not a constitutionally adequate basis for imposing sanctions. Pp. 385 U. S. 606-610.
255 F.Supp. 981, reversed and remanded.

Appellee, Board of Education, dismissed appellant, a teacher, for writing and publishing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs and the Board's and superintendent's methods of informing, or preventing the informing of, the school district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. At a hearing, the Board charged that numerous statements in the letter were false, and that the publication of the statements unjustifiably impugned the Board and school administration. The Board found all the statements false as charged, and concluded that publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and that "the interests of the school require[d] [appellant's dismissal]" under the applicable statute. There was no evidence at the hearing as to the effect of appellant's statements on the community or school administration. The Illinois courts, reviewing the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether the Board could reasonably conclude that the publication was "detrimental to the best interests of the schools," upheld the dismissal, rejecting appellant's claim that the letter was protected by the First and Fourteenth Amendments, on the ground that, as a teacher, he had to refrain from making statements about the schools' operation "which, in the absence of such position, he would have an undoubted right to engage in."

I.

This appeal challenges the constitutionality of the "anti-evolution" statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of "fundamentalist" religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee "monkey law" which that State adopted in 1925.[1] The constitutionality of the Tennessee law was upheld by the Tennessee Supreme Court in the celebrated Scopes case in 1927.[2]The Arkansas law makes it unlawful for a teacher in any state-supported school or university "to teach the *99 theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position.[3]The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965-1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth "the theory about the origin . . . of man from a lower form of animal."*100 Susan Epperson, a young woman who graduated from Arkansas' school system and then obtained her master's degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal.
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As Director of Community Intensive Training for Youth (CITY), a program for underprivileged youth operated by Central Alabama Community College (CACC), petitioner Edward Lane conducted an audit of the program’s expenses and discovered that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting for work. Lane eventually terminated Schmitz’ employment. Shortly thereafter, federal authorities indicted Schmitz on charges of mail fraud and theft concerning a program receiving federal funds. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. Schmitz was convicted and sentenced to 30 months in prison. Meanwhile, CITY was experiencing significant budget shortfalls. Respondent Franks, then CACC’s president, terminated Lane along with 28 other employees in a claimed effort to address the financial difficulties. A few days later, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee. Lane sued Franks in his individual and official capacities under 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for testifying against Schmitz.